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How Hillary Clinton Wants to Create Two Classes of Citizens

Secretary of State Hillary Clinton greets Senator John McCain (R-AZ) as she arrives to testify before the Senate Foreign Relations Committee hearing on the terrorist attacks on the U.S. Embassy in Benghazi, in Washington, DC on January 23, 2013.   UPI/Molly Riley

Hillary Clinton has made her first statement about what she wants in a Supreme Court justice. Instead of focusing on jurisprudential philosophy, Clinton has laid out a litmus test defined by a particular case: her justice must be committed to overruling Citizens United.

This comment shows that Clinton wants to abridge core political freedoms and to create two classes of citizens—the scribal class which has special privileges to speak at election time and the rest of us who are prevented from disseminating our views as effectively. Recall that Citizens United was a non-profit corporation that put out a video that criticized none other than Hillary Clinton, then as now running in a primary for the Democratic presidential nomination. The McCain-Feingold legislation made such criticism by a corporation illegal in the run-up to a primary, but the Supreme Court struck down this prohibition as violating the First Amendment. The legislation  expressly exempted media corporations from its prohibitions, creating a distinction between those in the media and everyone else.

The Court’s decision was clearly correct. As I argued fifteen years ago, and as Mike McConnell has since developed independently at much greater length, the dissemination of such independent views is encompassed within the freedom of the press. A video today is no different from the classic pamphlet of Tom Paine. And nothing in the press clause suggests that its protections should be limited to those who own presses or their modern equivalents of distribution. Why should the Constitution discriminate against those, such as Tom Paine, who wish to rent a press rather than own one? That distinction would exalt one class of citizens over others. Nor does the text of the Constitution make any distinction among the forms of business by which First Amendment freedoms can be exercised. In fact, many if not most of the First Amendment cases won by the news media, such as New York Times v. Sullivan, have been triumphs of corporations.

Of course, Clinton understandably wants to limit press freedoms to the scribal class, which is dominated by her Democratic allies, because that will help her and left-liberal causes more generally. We saw just this week that, George Stephanopoulos, the Chief Anchor of ABC and former adviser to Bill Clinton, donated to the Clinton foundation and failed to disclose this fact when he harshly questioned a writer who had impugned the foundation’s ethics. And the mainstream media, like the New York Times and the Washington Post, previously have harshly denounced litmus tests on abortion for nominees to the Supreme Court, even when Republican administrations have denied having such litmus tests. But so far we have seen little press criticism of Clinton for her avowed litmus test.  The great advantage of providing special privileges to a class made up largely of political allies is that they can use these privileges to sustain a national political discourse of high-minded double standards.

Reader Discussion

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on May 19, 2015 at 08:16:15 am

As I understand this ruling--and to a topic like this one, I bring no professional expertise at all, no scholarly authority whatsoever--the issue in part turned on the definition of a corporation. One of the justices argued that corporations are creations of government and thus are more subject to government oversight than are non-artificial persons. Two of the justices took issue with that, and argued that corporate persons possess the same freedoms as do non-artificial persons. At least, that's what I understand happened.

As I understand Professor McGinnis' argument above, he is supporting the idea that corporate persons are identical with actual flesh and blood persons, and that both are citizens.

So, several questions:

First, is what I write above more or less correct?

Second, what are the strongest arguments to be made for the proposition that corporations are not the same as non-artificial persons, and in particular possess public obligations that actual persons do not?

Third, what are the stringest arguments to be made for the contrary view--which I take to be the one that narrowly prevailed?

Fourth, how can a corporation be a citizen, since they are not born in any natural sense, nor can they participate in naturalization ceremonies? The 14th amendment, after all, defines citizenship fairly straightforwardly, and in any kind of literal reading of its definition, corporations do not seem to qualify. As I understand the argument, both sides argue for only one class of citizens. The difference rather is whether or not artificial persons are citizens. If that is the case, McGinnis' title, above, is misleading. McGinnis is a careful writer, so I presume I have gone astray somewhere here.

I have to confess I am find all of this a bit confusing. Can anyone help unpack the issues involved?

Many thanks,
Kevin

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Kevin R. Hardwick
on May 19, 2015 at 08:45:04 am

[…] How Hillary Clinton Wants to Create Two Classes of Citizens […]

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Image of The Politically Correct Should Not Own Graduation - Freedom's Floodgates
The Politically Correct Should Not Own Graduation - Freedom's Floodgates
on May 19, 2015 at 10:49:08 am

Dear Professor Hardwick,
Thanks for your comment. I have added a sentence to the post to make clear that the legislation at issue in Citizens United itself distinguished between the media and other actors, as is invariably the case with such campaign regulation. Thus, Hillary Clinton does want to create classes among citizens in their capacity to make effective use of the corporate form for speech at election time. The media would continue to be free to editorialize as much as they want.
As to the question of the protections for corporations under the First Amendment, the prohibition on regulating the press falls on Congress and makes no distinction between the kind of business forms individuals can use to make their press freedoms effective. Why should the First Amendment protect partnerships and not corporations, for instance? The Court has not generally made such a distinction in First Amendment law and in fact has long given corporations of all kinds protection for both political and commercial speech. Thus, the Court's decision in the Citizens United reflects both the text of the Constitution and established neutral principles in interpreting it.

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John O. McGinnis
on May 19, 2015 at 15:26:13 pm

The main issue with the "corporations are not people" argument, lies with the First Amendment restriction on government with respect to peaceful assembly, generally for purposes of redress of grievances, but for any other purpose as well.

The peaceful assembly clause permits groups to assemble peacefully. The clause applies not only to the right to petition, but for the right to commit other acts of communication as a group. The right to petition is a powerful form of citizen involvement with government, whether the petition is directed to the court in the form of suits, to the legislature in the form of initiates, to the president in the form of requests for actions, and, rarely discussed, to the states in requests to use their Article V power to call for an amendment convention. The size and the form of the organization of the assembly is not important. The petition of the first Continental Congress was issued by representatives of the people of the 13 colonies. That was a very large peaceful assembly, handled by a few proper representatives. Freedom of speech is still a form of involvement with government, and the power of groups of people to peacefully assemble and exercise political speech is covered under the First Amendment.

I don't understand where in the mind of the public the confusion lies. A group of people are peacefully assembled in the form of an individual, a club, an angry (but nonviolent) mob, a corporation (nonprofit or otherwise), a state, or a group of states, and they exercise involvement in government by a petition or other communication.

The declared First Amendment restriction simply made the implicit restriction explicit because it was believed that members of government would try to violate an implied restriction. An explicit restriction is much harder to violate. This story is another great example of why the restriction was added.

It also illustrates why more government restrictions need to be made explicit. Not by court rulings, but by convention. The court has its issues when it comes to political hot potatoes, as McGinnis discussed previously.

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Scott Amorian
on May 19, 2015 at 16:00:36 pm

John--

Thank you--you are very gracious to post a reply to what I suspect was a pretty basic question, albeit one with which I was struggling. For what it is worth, I did read the various opinions in the case, including a very interesting exchange among several of the justices regarding the understanding of corporations in the 1780s and 1790s. But that is an historical issue, and one on which I have better footing to venture an informed opinion.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 20, 2015 at 12:44:55 pm

[…] from its prohibitions, creating a distinction between those in the media and everyone else. Read more… Washington Post: Hillary Clinton’s hypocrisy By Dana Milbank Nice sentiments, to be sure, […]

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Image of Daily Media Links 5/20: Corruption: Voters Know It When They See It Posted, Ban ‘Dark Money’ in Politics? Might as well burn the First Amendment, and more…
Daily Media Links 5/20: Corruption: Voters Know It When They See It Posted, Ban ‘Dark Money’ in Politics? Might as well burn the First Amendment, and more…
on May 21, 2015 at 10:56:10 am

Professor McGinnis:

You are correct w/ respect to the position(ing) of the media in this issue as well as the place Ms Hillary would like to assign them. Speech clause guarantee appears to prohibit regulation of corporate campaign contributions as corporations are, to a certain extent, citizens. Below Scott makes an equally valid point regarding "right to assemble" - which much corporate behavior falls under.
Yet, if my memory serves, have their not been SCOTUS decisions in which it was determined that "corporation" are not entitled to the protection of the "Privileges and Immunities Clause(s)" of the Constitution.
What effect could this have on corporation campaign behavior? Of course, that presupposes that someone knows what P&I actually are.

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gabe
on May 30, 2015 at 01:23:54 am

What difference does this really make? It's not like our dear Hillary will ever have a Supreme Court Appointment in the first place! Think about it: Obama appointed TWO. Thats practically a precedent! Most presidents are LUCKY to appoint ONE to the bench. I seriously doubt the issue will come up in Ms. Clinton's ONE TERM presidency- assuming she even gets that, which is probable- given republicans, (not naming names, but we ALL know who I'm talking about) who say things like "women that get raped deserve it" etc.

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John Doe
on September 10, 2015 at 21:20:02 pm

The woman's brilliant... and I believe she is going to put action into the "change" that Barack Obama basically initiated. I believe in just one term she is going to set what is crooked straight in government, wall street, IRS, the supreme court justice, etc etc. Now they might ostracize her for it But she is the president....She worked all her life since the age of twelve for this position and why? To set things straight and she is over qualified.....

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sara rivera

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.